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Nogendra Nath Roy Chowdhury and ors. Vs. Ashutosh Roy Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.627
AppellantNogendra Nath Roy Chowdhury and ors.
RespondentAshutosh Roy Chowdhury and ors.
Cases ReferredRash Behari Pal Chowdhry v. Sridhar Belal
Excerpt:
civil procedure code (act v of 1908), section 102 - appeal, second, right of--suit cognizable by small cause court--declaration, prayer for, addition of, whether alters nature of suit. - .....section 23 of the provincial small cause courts act does not give the parties a right of second appeal. the suit, notwithstanding the fact that the plaint has been returned, remains one which is cognizable by a small cause court. the only difference that is said to have occurred in this case if that the plaintiffs, when the plaint was retured to them, added- in it a prayer for a relief that they asked for by way of declaration. in the original plaint, there was no prayer for such a relief; but, in the amended plaint, this relief was asked for in the form of a declaration; and the only question is whether the mere fact of adding a prayer for a declaration to the plaint gives the plaintiffs a right of second appeal. the case relief on by the plaintiffs, namely, the case of rash behari.....
Judgment:
Fletcher, J.

1. This is an appeal by the plaintiffs against a decision of the learned District Judge of the 24-Pergannahs, dated the 2nd April 1913, modifying the decision of the Munsif at Baruipore. The action was an action instituted, at first, in a Court of Small Causes to recover damages by the plaintiffs for certain wrongful acts said to have been done by the defendants with reference to a property to which they were both jointly entitled. The learned Judge in the Small Cause Court, in the exercise of his discretion under Section 23 of the Provincial Small Cause Courts Act, thought fit to return the plaint to the plaintiffs for presentation to the regular Civil Court. The only question now for our decision is, 'does a second appeal lie or is a second appeal barred under Section 102, Civil Procedure Code.' It has been decided quite clearly that the mere fact that the Judge exercised his discretion under Section 23 of the Provincial Small Cause Courts Act does not give the parties a right of second appeal. The suit, notwithstanding the fact that the plaint has been returned, remains one which is cognizable by a Small Cause Court. The only difference that is said to have occurred in this case if that the plaintiffs, when the plaint was retured to them, added- in it a prayer for a relief that they asked for by way of declaration. In the original plaint, there was no prayer for such a relief; but, in the amended plaint, this relief was asked for in the form of a declaration; and the only question is whether the mere fact of adding a prayer for a declaration to the plaint gives the plaintiffs a right of second appeal. The case relief on by the plaintiffs, namely, the case of Rash Behari Pal Chowdhry v. Sridhar Belal 6 C. W. N. 687 does not establish the point that the plaintiffs wish to establish by that case. That case does not establish that the mere addition of a prayer for a declaratory relief gives the plaintiff a right of second appeal. It says that where the suit is, as it was in the Small Cause Court, for damages and remains such in the Civil Court, then the plaintiff has got no right of second appeal. The learned Judges in that case did not consider, nor had they before them the case, that the mere addition of a relief asking for a declaration would alter the character of the suit. On the other hand, there is the decision of a Full Bench of the Madras High Court that had the very point for consideration. That is the decision in Rama-chandraiyar v. Nurulla Sahib 30 M. 101 : 1 M. L. T. 314 : 16 M.L.J. 477 and there it was held that where all the reliefs which the plaintiffs claimed in a suit could have been obtained without asking for a declaration, the mere addition of a prayer for a declaration did not prevent the suit from being a suit cognizable by the Small Cause Court. I think that that decision is clearly correct and, in that view, the mere addition of such a prayer does not alter the character of the suit so as to give a party a right of second appeal which is prohibited by the terms of Section 102, Code of Civil Procedure. In that view, it is quite clear that a second appeal does not lie in the present case. The appeal, therefore, fails and must be dismissed.

2. The cross-objection is not pressed and is accordingly dismissed.

3. We make no order as to costs.

Newbould, J.

4. I agree.


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